Maryland Casualty Co. v. United States, Civil Action No. 2474.

• Decision Date: 23 November 1945
• Docket Number: Civil Action No. 2474.
• Citation: 63 F. Supp. 629
• Parties: MARYLAND CASUALTY CO. v. UNITED STATES.
• Court: U.S. District Court — District of Maryland

63 F. Supp. 629

MARYLAND CASUALTY CO. v. UNITED STATES.

Civil Action No. 2474.

District Court, D. Maryland.

November 23, 1945.

Roszel C. Thomsen (of Clark, Thomsen & Smith), of Baltimore, Md., for plaintiff.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., John F. Sonnett, Asst. Atty. Gen., and Alfred S. Berg and Ellis Lyons, Attys., Department of Justice, both of Washington, D. C., for defendant.

CHESNUT, District Judge.

This is a suit under the Tucker Act, 28 U.S.C.A. § 41(20). The plaintiff, Maryland Casualty Company, a Maryland Corporation, is suing the United States to recover the sum of $7,000 which it, as surety on an Army officer's bond, paid to the United States in 1938. In 1943 Congress passed a special Act for the relief of the Army officer directing the General Accounting Office to credit him in the amount of $49,612.18, which represented the full original amount of the claim of the United States against him. It is the contention of the plaintiff that the $7,000 paid by it was on account of the original indebtedness and that by subrogation it is entitled to recover that sum now.

The answer of the United States admits the principal facts alleged in the complaint but sets up two defenses: (a) That the court does not have jurisdiction of this particular case under the Tucker Act, and (b) that the facts set out in the complaint state no sufficient cause of action. This second defense is based upon construction of the private law of Congress referred to. Both parties have respectively moved for a judgment on the pleadings, Federal Rules of Civil Procedure, Rule 12(c) 28 U.S.C.A. following section 723c.

While I think the case substantially turns on the construction of the Act of Congress, it is necessary to briefly state the facts set out in the complaint in order to have a proper understanding of the respective contentions.

In 1917 Samuel J. Marshall was disbursing officer in the Quartermaster Department of the United States Army. He as principal and the Maryland Casualty Company as surety executed an official bond to the United States in the penal sum of $10,000, conditioned upon proper accounting by the officer. In 1926 the General Accounting Office made claim against Captain Marshall in the amount of $49,112.18, which, in 1930, was increased to $49,612.18.

In 1928 the United States sued Marshall and his surety jointly, claiming $49,112.18 against Marshall, and $10,000 from the surety. A Bill for the relief of Marshall was introduced in Congress in 1928 and similar Bills were introduced during subsequent sessions. An Act for his relief was finally passed and approved on December 23, 1943.

In the meantime, however, the United States pressed for final disposition of the suit which was pending in the District Court for the Eastern District of Pennsylvania. In consequence thereof, on or about October 20, 1938, the Casualty Company as surety for Captain Marshall paid to the United States $7,000 which was received by the United States in compromise of the surety's liability and (as alleged by the Casualty Company in this case) "was credited or should have been credited to the account of said Marshall". (This last averment is not admitted in the answer). The suit was marked "settled, ended and discontinued as to the Maryland Casualty Company alone." On January 25, 1944, following the passage of the Act of Congress referred to, the suit against Marshall was "discontinued without cost".

The Act of Congress referred to, Private Law 165, 78th Cong. ch/384, 1st. Sess.H.R. 2545, 57 Stat. 718, was entitled "An Act for the relief of Samuel J. D. Marshall" and was approved by the President and became law. That Act provided as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the General Accounting Office be, and is hereby, authorized and directed to credit the account of Samuel J. D. Marshall, former captain, Quartermaster Corps, United States Army, disbursing officer of the Army at Camp Stewart, Virginia, and Mitchel Field, Long Island, New York, with $49,612.18, this sum being an alleged shortage in the accounts of the said Samuel J. D. Marshall and a balance due the United States while acting as disbursing officer at Camp Stewart, and Mitchel Field, New York, due to the lack of evidence to support certain disbursements."

In my opinion the court has proper jurisdiction of this suit under the Tucker Act. It is true, of course, that the United States is immune from suit unless Congress has otherwise clearly provided. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Michel, 282 U.S. 656, 51 S.Ct. 284, 75 L.Ed. 598. 28 U.S.C.A. § 41(20), the Tucker Act, provides that the district courts shall have jurisdiction of claims not exceeding $10,000 founded "upon * * * any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, of the Government of the United States." The present suit is obviously founded on the private Act of Congress in this case and I think the authorities fairly support the jurisdiction. McLean v. United States, 226 U.S. 374, 33 S.Ct. 122, 57 L.Ed. 260; United States v. Emery, 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825; Dismuke v. United States, 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561; Medbury v. United States, 173 U.S. 492, 19 S.Ct. 503, 43 L.Ed. 779; Bang v. United States 8 Cir., 117 F.2d 515; Ross Packing Co. v. United States, D.C., 42 F.Supp. 932. Cf. Baltimore Mail SS Co. v. United States, 4 Cir., 76 F.2d 582, certiorari denied 296 U.S. 595, 56 S.Ct. 111, 80 L.Ed. 421.

Before coming to the determination of the effect of the private Act relied upon by the plaintiff, it may be noted that Captain Marshall is not a party to this present suit. The payment made by the Casualty Company was made more than six years prior to the institution of this suit on February 16, 1945, and 28 U.S.C.A. § 41(20) provides "No suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made;" but this seems immaterial as the plaintiff's claim is founded on the Act of 1943. More importantly, the complaint states that the payment of $7,000 was made "in compromise" of the surety's liability. At the oral argument on the motions in this case for judgments on the pleadings, it was suggested by the court that it might be preferable to overrule both motions and have the case submitted for final decision on evidence rather than on the pleadings, with the possibility that there might be relevant and important evidence...